Members of the beverage and restaurant industries filed a lawsuit Friday challenging New York City’s impending ban on sugary drinks, arguing that Mayor Michael Bloomberg’s Board of Health does not have the authority to pass the measure.

The plaintiffs, including the National Restaurant Association and the American Beverage Association, argue that only the city council—which is a legislative, rather than executive, body—has the authority to approve the law. “This case is not about obesity in New York City,” the lawsuit says. “This case is about the Board of Health, appointed by the mayor, bypassing the proper legislative process for governing the city.”

The city’s Board of Health voted in September to approve the measure, which is scheduled to take effect on March 12, 2013. The ban will prohibit businesses such as restaurants, delis, movie theaters and stadiums from selling sodas or sugary drinks larger than 16 ounces. Bloomberg argues that the legislation will help to curb NYC’s escalating obesity rates. According to the city, 58 percent of NYC’s adults and almost 40 percent of its public school students are overweight or obese.

Critics of the measure say that it infringes on personal freedom and could harm small businesses. They also note that the ban contains many loopholes and exceptions: Customers can still buy oversized drinks in convenience stores and supermarkets. Diet sodas and alcohol- and milk-based beverages are exempt from the law. And consumers determined to skirt the ban can simply buy two 16-ounce beverages instead of one 32-ounce drink.

These arguments notwithstanding, some experts predict that businesses will have a difficult time mounting legal challenges to the legislation, as the health department has the power to regulate NYC restaurants and other eateries. Bloomberg himself has already passed several high-profile public health measures during his 11-year tenure as mayor, including a ban on smoking in most public places and a measure outlawing the use of trans fats in restaurants.

Read more at Thomson Reuters.

For more InsideCounsel coverage of beverage-related lawsuits, see:

Legal challenges to New York sugary drink ban may fail

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